195 U.S.

194
25 S.Ct. 3
49 L.Ed. 154

ANDREW J. AIKENS, Plff. in Err.,

v.
STATE OF WISCONSIN. NO 3. ALBERT HUEGIN, Plff. in
Err., v. STATE OF WISCONSIN. NO 4. MELVIN A. HOYT,
Plff. in Err., v. STATE OF WISCONSIN. NO 5.
Nos. 3, 4, 5.
Argued and submitted October 21, 22, 1903.
Ordered for reargument. May 31, 1904.

Reargued and Submitted October 17, 18, 1904.

Decided November 7, 1904.
Messrs. W. H. Timlin and George D. Van Dyke for plaintiff in error in
Nos. 3 and 4.
[Argument of Counsel from Pages 195-198 intentionally omitted]
Messrs. S. S. Gregory, Conrad H. Poppenhusen, and Joseph L. McNab for
plaintiff in error in No. 5.
Messrs. James G. Flanders and Lafayette M. Sturdevant for defendant in
error in Nos. 3 and 4.
Mr. Lafayette M. Sturdevant for defendant in error in No. 5.
[Argument of Counsel from pages 199-201 intentionally omitted]
Mr. Justice Holmes delivered the opinion of the court:

These are three writs of error to the supreme court of Wisconsin, brought to set
aside convictions and sentences of the plaintiffs in error, the defendants below,
upon informations filed by the district attorney. 113 Wis. 419, 89 N. W. 1135.
The ground of the writs is that the proceedings violated the rights of the

plaintiffs in error under the 14th Amendment of the Constitution of the United
States. The informations were brought under the Wisconsin statutes of 1898,
4466a, which impose imprisonment or fine on 'any two or more persons who
shall combine . . . for the purpose of wilfully or maliciously injuring another in
his reputation, trade, business, or profession, by any means whatever,' etc. The
plaintiffs in error were severally charged with unlawfully combining together
with the intent of wilfully and maliciously injuring The Journal Company, a
corporation, and certain persons named, stockholders and officers of the
company, in their trade and business. It was alleged that the company was
publisher of a newspaper in Milwaukee, and had notified an increase of about
25 per cent in its charges for advertising, and that thereupon the plaintiffs in
error, who were managers of other newspapers in the same place, in pursuance
of their combination, and with the intent of wilfully, maliciously, and
unlawfully injuring The Journal Company and the others named, agreed as
follows: If any person should agree to pay the increased rate to The Journal
Company, then he should not be permitted to advertise in any of the other three
newspapers except at a corresponding increase of rate; but if he should refuse to
pay the Journal Company the increased rate, then he should be allowed to
advertise in any of the other three papers at the rate previously charged. It was
alleged that this conspiracy was carried out, and that much damage to the
business of The Journal Company ensued.
2

The defendant Hoyt demurred to this information, setting up the 14th

Amendment. Aikens and Huegin filed pleas which admitted the combination
and intent of injuring The Journal Company, and the resulting damage, but
alleged that the combination was entered into in trade competition, and that the
parties had the right to make it under the 14th Amendment. The state demurred
to the pleas. The demurrer of Hoyt was overruled; those of the state were
sustained. The defendants were sentenced and the judgment of the trial court
was affirmed by the supreme court of the state on the authority of an earlier
decision between the same parties, reported in 110 Wis. 189, 62 L. R. A. 700,
85 N. W. 1046.

The statute, it will be observed, punishes combining for the purpose of wilfully
or maliciously injuring another in his business. If it should be construed
literally, the word 'wilfully' would embrace all injuries intended to follow from
the parties' acts, although they were intended only as the necessary means to
ulterior gain for the parties themselves. Taken in that way the word would hit
making a new partnership, if it was intended thereby to hurt someone's else
business by competition. We shall not consider whether that branch of the
statute, so construed, could be sustained, and express no opinion about it. The
supreme court of Wisconsin has intimated that a narrower interpretation will be

adopted, and in the present case we have to deal only with the other branch,
depending on the word 'maliciously,' as we shall explain in a moment. the lastquoted word we must take as intended to add something to the word 'wilfully,'
and we can do so only by taking it in its true sense. We interpret 'maliciously
injuring' to import doing a harm malevolently, for the sake of the harm as an
end in itself, and not merely as a means to some further end legitimately
desired. Otherwise the phrase would be tautologous, since a wilful injury is
malicious in the sense familiar to declarations and indictments, where, indeed,
the word means no more than foreseen, or even less than that. A death is
caused of malice aforethought if, under the circumstances, known to the actor,
the probability of its ensuing from the act done is great and manifest according
to common experience. Com. v. Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264;
1 East, P. C. 262. See also Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div.
598, 613.
4

The informations alleged a combination for the purpose of wilfully and

maliciously injuring others, and therefore brought the case within the latter
branch of the statute, if there are two, and if 'or' in the act is not taken to mean
'and.' It is true that the plan is set forth, and some argument was spent on
whether that plan might or might not be an instrument of ultimate gain. But
while that question may have been open when the state court was discussing
the evidence warranting a commitment, in 110 Wis. 189, 62 L. R. A. 700, 85
N. W. 1046, none such is open here. The malevolent purpose is alleged, it is
admitted by the demurrer, it is not sufficiently denied by the pleas, whatever
we may conjecture would have been done if counsel had had this decision
before them. A purely malevolent act may be done even in trade competition.

We come, then, to the question whether there is any constitutional objection to

so much of the act as applies to this case. It has been thought by other courts as
well as the supreme court of Wisconsin that such a combination, followed by
damage, would be actionable even at common law. It has been considered that,
prima facie, the intentional infliction of temporal damages is a cause of action,
which, as a matter of substantive law, whatever may be the form of pleading,
requires a justification if the defendant is to escape. Mogul S. S. Co. v.
McGregor, L. R. 23 Q. B. Div. 598, 613, [1892], A. C. 25, 61 L. J. Q. B. N. S.
295, 66 L. T. N. S. 1, 40 Week. Rep. 337, 7 Asp. Mar. L. Cas. 120, 56 J. P.
101. If this is the correct mode of approach, it is obvious that justifications may
vary in extent, according to the principle of policy upon which they are
founded, and that while somefor instance, at common law, those affecting
the use of landare absolute (Bradford v. Pickles [1895], A. C. 587), others
may depend upon the end for which the act is done. Moran v. Dunphy, 177
Mass. 485, 487, 52 L. R. A. 115, 83 Am. St. Rep. 289, 59 N. E. 125; Plant v.

Woods, 176 Mass. 492, 51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011;
Squires v. Wason Mfg. Co. 182 Mass. 137, 140, 141, 65 N. E. 32. See cases
cited in 62 L. R. A. 673. It is no sufficient answer to this line of thought that
motives are not actionable, and that the standards of the law are external. That
is true in determining what a man is bound to foresee, but not necessarily in
determining the extent to which he can justify harm which he has foreseen.
Quinn v. Leathem [1901], A. C. 495, 524, 70 L. J. P. C. N. S. 76, 85 L. T. N. S.
289, 50 Week. Rep. 139, 65 J. P. 708.
6

Whether, at common law combination would make conduct actionable which

would be lawful in a single person, it is unnecessary to consider. Quinn v.
Leathem [1901], A. C. 495, 70 L. J. P. C. N. S. 76, 85 L. T. N. S. 289, 50
Week. Rep. 139, 65 J. P. 708. We are aware, too, that a prevailing opinion in
England makes motives immaterial, although it is probable that in Allen v.
Flood [1898], A. C. 1, 94, 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 46
Week. Rep. 258, 62 J. P. 595, the jury were instructed, as in Temperton v.
Russell [1893], 1 Q. B. 715, 719, 62 L. J. Q. B. N. S. 412, 4 Reports, 376, 69 L.
T. N. S. 78, 41 Week. Rep. 565, 57 J. P. 676, in such a way that their finding of
malice meant no more than that the defendant had acted with foresight of the
harm which he would inflict, as a means to an end. Quinn v. Leathem [1901],
A. C. 495, 514. However these things may be, we have said enough to show
that there is no anomaly in a statute, at least which punishes a combination such
as is charged here. It has been held that even the free use of land by a single
owner for purely malevolent purposes may be restrained constitutionally,
although the only immediate injury is to a neighboring landowner. Rideout v.
Knox, 148 Mass. 368, 2 L. R. A. 81, 12 Am. St. Rep. 560, 19 N. E. 390.
Whether this decision was right or not, when it comes to the freedom of the
individual, malicious mischief is a familiar and proper subject for legislative
repression. Com. v. Walden, 3 Cush. 558. Still more are combinations for the
purpose of inflicting it. It would be impossible to hold that the liberty to
combine to inflict such mischief, even upon such intangibles as business or
reputation, was among the rights which the 14th Amendment was intended to
preserve. The statute was assumed to be constitutional in Arthur v. Oakes, 25 L.
R. A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63
Fed. 310, 325, 326.

But if all these general considerations be admitted, it is urged, nevertheless, that

the means intended to be used by this particular combination were simply the
abstinence from making contracts; that a man's right so to abstain cannot be
infringed on the ground of motives; and further, that it carries with it the right
to communicate that intent to abstain to others, and to abstain in common with
them. It is said that if the statute extends to such a case it must be

unconstitutional. The fallacy of this argument lies in the assumption that the
statute stands no better than if directed against the pure nonfeasance of singly
omitting to contract. The statute is directed against a series of acts, and acts of
several,the acts of combining, with intent to do other acts. 'The very plot is an
act in itself.' Mulcahy v. Queen, L. R. 3 H. L. 306, 317. But an act which, in
itself, is merely a voluntary muscular contraction, derives all its character from
the consequences which will follow it under the circumstances in which it was
done. When the acts consist of making a combination calculated to cause
temporal damage, the power to punish such acts, when done maliciously,
cannot be denied because they are to be followed and worked out by conduct
which might have been lawful if not preceded by the acts. No conduct has such
an absolute privilege as to justify all possible schemes of which it may be a
part. The most innocent and constitutionally protected of acts or omissions may
be made a step in a criminal plot, and if it is a step in a plot, neither its
innocence nor the Constitution is sufficient to prevent the punishment of the
plot by law.
8

It was urged farther that to make a right depend upon motives is to make it
depend upon the whim of a jury, and to deny the right. But it must be assumed
that the constitutional tribunal does its duty, and finds facts only because they
are proved. The power of the legislature to make the fact of malice material we
think sufficiently appears from what we already have said.

Finally, it is argued that the supreme court of Wisconsin would hold that the
statute extends to acts of which the motives were mixed, and which were done
partly from disinterested malevolence and partly from a hope of gain. If so, it is
said, the statute would be open to all the objections at which we have hinted in
dealing with the word 'wilfully.' The supreme court did use some language
which looked that way, but we consider it to have decided that the statute
would be confined to combinations with intent to do wrongful harm. 110 Wis.
193, 260, 62 L. R. A. 700, 85 N. W. 1046. Thus limited, on whatever ground,
the statute would punish only combinations of a kind for which no justification
could be offered and those which were taken out of the justification by the
motive with which they were made. We see no sufficient reason to believe that
the court will go farther, or construe the act in such a way as to raise questions
which we need not go into here. Therefore it is unnecessary to consider
whether, on a more literal construction, the portion dealing with malicious
intent could be separated from that which deals with the purpose of merely
wilful injury, and saved, even if the latter were held to go too far. Probably the
two phrases will be read together and the statute made unquestionable as a
whole.

10

Judgment affirmed.
Mr. Justice White, dissenting:

11

Not being able to concur in the conclusion of the court that the opinion of the
supreme court of Wisconsin has affixed to the statute of that state a much
narrower meaning than the text of the statute imports, and thinking, on the
contrary, that not only such text, but the construction of the statute adopted by
the supreme court of Wisconsin, operates to deprive the citizen of a lawful right
to contract, protected by the 14th Amendment, I dissent.